Birmingham Railway & Electric Co. v. Baker

HARALSON, J. — 1. Counts one and two of the complaint, the one in its averments of simple negligunee, and the other of Avanton, willful and intentional injury, have too often been held sufficient to admit of further — 515 — consideration.—Highland Ave. & B. R. R. Co. v. Robinson. 28 So. Rep. 28; L. & N. R. R. Co. v. Brown. 121 Ala. 221; L. & N. R. R. Co. v. Orr, 121 Ala. 489; Ala. Gr. S. R. R. Co. v. Burgess, 119 Ala. 587; Armstrong v. Montgomery St. R. Co., 123 Ala. 233; So. R’y Co. v. Guyton, 122 Ala. 231. 2. Demurrers were interposed to pleas 4, 5, 6, 7 and 11 and sustained. These pleas, in substance, attempt to impute to the plaintiff, who was a fireman riding on the hose-cart, the negligence of the driver of the cart. Two of them, the 6th and 11th, not denying the allegations of the complaint, that the plaintiff was, at the time he was riding on said cart, engaged in or about the business of the fire department, in attending an alarm of fire, allege that the plaintiff and the driver of the cart were engaged in a joint enterprise in going to a fire, averring in the one, that the plaintiff’s injuries were caused by the driver of the vehicle, and in the other; that the driver of said wagon was guilty of negligence in driving his wagon into and against the defendant’s car, allege that thereby the driver proximately contributed to the injuries received by the plaintiff. The principle here invoiced is without merit as applies! to this case. It has undergone elaborate discussion in the courts, and the doctrine once maintained in England is now repudiated generally in that country and in America. In the case of Bailey v. Jourdan, 18 N. Y. App. Div. 387, Bailey was a policeman of Brooklyn, and he and another policeman, Morgan, Avere sent by the police sergeant, Avith an ambulance, to bring to the station-house a prisoner. Morgan was detailed to drive the ambulance, and sat on the driver’s seat and did the driving, AAhile Bailey, the deceased, sat inside the vehicle. A dummy engine struck the ambulance and Bailey was killed in the collision. The contention of defendant was, that Bailey was negligent in failing to watch and wait for the coming train, and that Morgan, the driver, was negligent, and that his negligence should be imputed to Bailey. The testimony did not disclose any negligence on the part of the latter, personally. The court said that it was the duty of the driver and — 516 — not Bailey, to look out for coming trains; that the driver had exclusive charge of the. wagon, and it made ho difference that Bailey and Morgan were sent out by the sergeant in the common employment of bringing in a prisoner; that Bailey had nothing to do with the management of the wagon; that this was the duty of Morgan, with which Bailey had no connection and over which he had no control, and hence the negligence of the driver could not be imputed to him. To the same effect are cited the cases of McCormick v. Nassau E. R. Co., Ib. 333; Galvin v. The Mayor, 112 N. Y. 223; Seaman v. Koehler, 122 N. Y. 646. The distinction is clearly drawn in Bailey’s case, suyra, between cases of the kind, and others, where parties are engaged as comrades in a joint enterprise, with no one in absolute, individual control of the management of the vehicle, but where each, in a measure, is in the management and control of it. In Little v. Hackett, 116 U. S. 366, Justice Field discussed the principle, and reviewed the authorities, saying that “The identification of the passenger with the negligent driver of the owner, without his co-operation or encouragement, is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier, and the driver, or the person managing it, is his servant. Neither of them is the servant of the passenger*, and his asserted identity with them is contradicted by the daily experience of the world.” This court, in Elyton Land Co. v. Mingea, 89 Ala. 521, gave very thorough discussion of the subject, with citation of the authorities from many of the States, to sustain the view expressed in the foregoing cases. That was a case where the plaintiff, as an employe of the fire department of Birmingham, while riding in a hose car-t or reel, in regular pursuit of his duties as a fireman, was injured by the capsizing of the vehicle, in consequence of the negligent condition of defendant’s street railway over which it passed, the vehicle being driven by one Mullins, also a fireman ,and under his exclusive control. The court charged the jury that the negligence — 517 — of the driver of the carriage could not be imputed to the plaintiff, and could not be a bar to his recovery, provided lie was guilty of no negligence. Many charges requested by defendant and refused, sought to impute to plaintiff the alleged negligence of the driver, although the former had no control over the management of the hose cart or the horses attached to it. The court, as a result of the discussion, announced: “The rule must be regarded as now fully settled, both in England and America, and certainly in this State, that the negligence of the driver of a vehicle cannot be imputed to a passenger therein, -when the passenger is free from personal negligence, and has no control over the driver, and has not been guilty of any warit of care in his selection.” It was insisted by the defendant in that case, a’s here, that the plaintiff and the driver were in the employment of the city of Birmingham as firemen, and were, at the time of the injury, in the employment of the city, engaged in a joint enterprise, and for this reason the contributory negligence of the one should be imputed to the other. But this insistence was repudiated by the court, in the expression: “Where several persons are engaged in a joint enterprise, so that each is mutually responsible for the acts of the other, and no one has the exckisive control of the vehicle or vessel in which they were traveling, the one in management may be regarded as the agent of the others; and in such cases, the rule we have first above announced would have no application, that rule being based on the fact that there is no relation of principal and agent between the driver of a vehicle and one who rides with him, without authority to control him in management. Vermus v. T. C. I., & R. Co., 97 Ala. 331; L. & N. R. R. Co. v. Mothershed, 121 Ala. 658. McKinney, who was the driver, testified that he was assistant foreman of the north side fire department, and was the driver of hose-wagon number 2; that the plaintiff was working with the same fire department; that he assisted in driving; that- when witness was there, he, himself, was in charge and did the driving; that plaintiff had nothing to do with the horses and" wagon — 518 — or any control over them, except to bold them; that witness did the driving and Baker had nothing to do with it; that witness was driving the night of the injury, and Baker was on the wagon. In response to the question, “Did he have anything to do, directly or indirectly, with the reins or the driving of that wagon or horses that night?” he replied, “Nothing whatever;” that he. “had nothing to do with controlling those horses and handling those lines or driving that wagon that night;” he was not sitting on the seat with witness, hut was about two feet back of him on the ladders of the hose-wagon. Walton and plaintiff testified substantially to the same facts, and there is no conflict in the evidence as to them. The demurrers to the pleas mentioned were properly sustained. 3. It has been held in operating a railroad engine that “An intent to injure on the part of defendant’s employes is not essential to liability, notwithstanding contributory negligence; if is enough, if they exhibit such wantonness and recklessness as to probable consequences, as implies a willingness to inflict injury, or an indifference as to whether injury is inflicted, though they may not have such affirmative purpose.”—Ala. G. S. R. R. Co. v. Burgess, 119 Ala. 556 M. & C. R. R. Co. v. Martin, 30 So. Rep. 827; L. & N. R. R. Co. v. Brown, 121 Ala. 221, and cases there cited. In the la!tter case it was said: “The jury may, in a proper case, infer such consciousness, willingness or wantonness from his (the engineer’s) knowledge of the perilous conditions.” The evidence from which the jury might draw an inference of wanton and reckless conduct on the part of the motorman of the ele.ct.ric car was conflicting. That on the part of /the plaintiff tended to show, and this is not.disputed, that the car, going south on Twentieth Street, stopped at the crossing of that street with First Avenue; that when it got to First Avenue it waited for the East Lake dummy train to pass down the avenue; that at that time, the hose-wagon, in response to — 519 — a fire alarm, started from headquarters on Fourth Avenue and Nineteenth Street, — the latter street being west of and parallel ’ with Twentieth street, — and proceeding on Nineteenth street east, to First avenue, was going north, up that avenue, to Twentieth Street; that it was running about as fast as the horses could go, at the rate, as some of the witnesses estimated, of twenty-five miles an hour; was ringing its gong and malting the usual noise in its movement, all of which could be easily heard, and ivas heard by witnesses examined. The evidence also tended to show that just before the wagon reached the crossing of the car line, the motorman started his car, just in time for it to collide with the hose-wagon going up Twentieth Street on the north of the car line; that the wagon was some 18 or 20 feet down First Avenue when the car started, and that the motorman did nothing to stop, after he started the car, and gave no warning that he ivas going to start. One witness testified that the motorman was standing on the platform of his car, as the wagon approached, another, that he was looking south, along Twentieth Street, and still another, that at the time he started his car he was looking back through the car, north, up Twentieth Street. The evidence on the part of defendant was that the car did not start at all, but stood still, after it stopped, as the wagon approached, and was run into by the wagon. Under this evidence, it was for the jury to' say whether or not the motorman saw and heard the wagon as it approached, when he put his car in motion, if he did so, and willfully or wantonly or with reckless Indifference to consequences failed to discharge the duty resting upon him to prevent the collision; and it was not competent for the court as a matter of law, to take this question from them, as proposed by defendant in several refused charges. Under the second count, notwithstand ■ ing the plaintiff may have been guilty of contributory negligence, these were improper instructions. The 3d and 10th charges, as matter of law, make it contributory negligence for a fireman while riding to — 520 — a fire on a hose-cart, to stand on his feet and be in the act of putting on his coat. The evidence tended to show that the firemen, when starting to a fire, would not have time to- put on their coats, and to avoid getting wet, and to he in readiness for service when they arrived at the fire, they put them on while on the way, and this they were allowed to do. This might or might not, in the minds of different persons, be negligence, and the court very properly declined to give the instructions which assumed as a matter of law that such an act of itself was contributory negligence. There was nothing decided in this case on its former appeal (126 Ala. 135) opposed to anything here decided. On the former trial, issue was taken on the pleas and trial had thereon, to which pleas on the reversal and remandment of the cause to the circuit court, demurrers were interposed and sustained. The two trials proceeded on different issues, and the questions now decided were not considered on the former appeal. We have passed on all the assignments of error insisted on in brief of counsel, and finding no error, let the judgment of the lower court be affirmed. Affirmed.